Liberal Holds Open Courthouse Door

August 01, 1989|By Bill Grady, Merrill Goozner and John O`Brien.

Richard D. Cudahy, who sits on the U.S. Court of Appeals in Chicago, may be the wealthiest federal judge in the nation.

The 63-year-old scion of the Milwaukee area meatpacking family also may be one of the last liberals among the active judges on the appeals court, which is dominated by conservatives appointed by former President Ronald Reagan.

Cudahy, whose financial disclosure statement puts the value of his investment portfolio at between $8.3 million and $16.1 million, wrote a strong dissent recently when the majority threw out a 1986 jury verdict and said a lawsuit that had been kicking around the federal courts for 13 years actually belonged in the state courts.

The majority decided that the lawsuit was not an appropriate use of an important federal civil rights statute. Cudahy disagreed.

``As courthouse doors continue inexorably to swing shut, the protection of citizens against abuses of power shrinks to the point of disappearance,``

wrote Cudahy, who was appointed to the court by former President Jimmy Carter in 1979. Judge Walter Cummings, 73, who has been on the court since 1966, joined in the dissent.

The lawsuit involved charges by Easter House, a Chicago adoption agency, and its owner, lawyer Seymour Kurtz, that employees of the state Department of Children and Family Services (DCFS) conspired in an effort to run him out of business in the mid-1970s. A jury awarded Easter House $200,001 in damages in 1986.

Kurtz, who has headed a network of adoption agencies, has been an occasional target of various investigations and was censured by the Illinois Supreme Court earlier this year for not fully informing people seeking adoptions about his links to the various agencies.

A three-judge appeals court panel decided 2-1 to uphold most of the award a year ago. That opinion was written by Cudahy and joined in by Cummings.

Then, the full appeals court decided to rehear the case. Judge Michael S. Kanne, who had dissented the first time, wrote the majority opinion. Kanne said Kurtz`s complaint is not serious enough to raise constitutional issues because the DCFS employees were not carrying out state policy and because Kurtz could have filed suit for damages in state court.

``If Easter House was wronged by the three individual defendants, it was not something the state did in violation of the federal Constitution. It was an isolated action by state employees,`` said William Curtis, chief counsel for DCFS.

Curtis praised the decision, saying, ``It`s the kids who get hurt when our people are intimidated into not doing their jobs well.``

But Martin Redish, a law professor at Northwestern University, called the decision an example of judicial activism by conservative judges who try to shut off access to federal courts in ways that Congress had not intended.

Seven of the judges signed on to Kanne`s opinion; Judge Frank Easterbrook wrote a concurring opinion that framed the issue in one of his cost-benefit analyses. Easterbrook and Kanne are two of Reagan`s 7 appointees among the 11 active judges on the court.

The litigation spill

It`s a tossup over which will linger longer in Alaska-the oil from the tanker Exxon Valdez or the litigation that is resulting from the disastrous spill.

Already about a hundred lawsuits have been filed-by native tribes, environmentalists, fish hatcheries, commercial and sport fishermen, hunting lodges and others-and the court system there has turned to a Cook County judge for help.

Judge Dean Trafelet, who has been presiding over asbestos litigation in Circuit Court here, heads to Anchorage later this week in response to a request from officials there for advice on what administrative steps can be taken to avoid being buried in the paperwork.

Another auditor setback

As expected, the Illinois Supreme Court turned down an appeal by state Auditor General Robert Cronson in his 12-year legal battle to audit two agencies of the state high court.

Since 1977, Cronson has been attempting to look at the books of the Attorney Registration and Disciplinary Commission, which investigates complaints against lawyers, and the State Board of Law Examiners, which administers the bar exam. Lower courts earlier had ruled against Cronson.

The Supreme Court also rejected Cronson`s request that four of the seven members disqualify themselves from participating in the decision.

Cronson says he is considering an appeal to the U.S. Supreme Court on the grounds he didn`t get a fair hearing in the state courts.

- James R. Ferguson leaves the U.S. attorney`s office at the end of the summer for private practice. He`s been an assistant U.S. attorney since 1980 and head of the appeals division since 1986.

As a prosecutor, Ferguson won convictions of former Ald. Perry Hutchison